Restaurants often vulnerable to sexual harassment charges

Earlier this month, the Equal Employment Opportunity Commission (EEOC) sued popular Atlanta-area restaurant/night club Taboo 2 Bar & Bistro for sexual harassment. The female employees alleged such intolerable working conditions that they were forced to resign. Ironically, sexual harassment is often considered a taboo topic, but it can't be ignored.

During the 1990s the restaurant industry had a reputation for fostering a work climate condoning sexual harassment. In 1996, the National Restaurant Association’s Educational Foundation produced training videos on a variety of topics including sexual harassment. Later, a model policy was also made available. After taking steps to curb sexual harassment in restaurants, the association also released results from studies that showed the majority of its member restaurants (60%) had included sexual harassment policies. But is it sufficient just to have a policy in place? Do employees still view sexual harassment as accepted and prevalent in the restaurant industry? Do managers know how to handle a complaint and the consequences of not taking the complaint seriously and investigating? Most importantly, do management and staff know what constitutes sexual harassment?

The problem is real. According to an MSNBC report, 37 percent of sexual harassment suits reported by the federal government took place in restaurants. This is a disproportionate number, considering that less than 9 percent of U.S. workers are employed by restaurants.

The Taboo 2 Bar & Bistro lawsuit is not an isolated incident. Earlier this year in June, the EEOC sued the owner of Maryland-based Basta Pasta for subjecting female employees to sexual harassment and firing a manager who complained about the incident. In July 2012, Missoula Mac, Inc., the owner of 25 McDonald’s restaurants, agreed to pay $1 million in an EEOC class sexual harassment lawsuit and provide substantial injunctive relief. A federal jury ordered Hooters restaurant to pay $275,000 to a former waitress who claimed she was the target of “unwanted sexual advances, demeaning behavior, and recrimination from managers.”

It is every restaurant operator’s responsibility to have a clear understanding of sexual harassment, educate employees on what constitutes sexual harassment and how to file/follow up with a complaint and, finally, know the consequences of not following the laws related to sexual harassment.

What constitutes sexual harassment?

According to Title VII of the Civil Right Act of 1964, sexual harassment is a form of sexual discrimination. It applies to employers with 15 or more employees. According to Title VII, sexual harassment can take two forms:

·      Quid Pro Quo, meaning something of value exchanged for something else of value or threat of some negative action. If an employee experienced a promise of promotion (or lack of promotion) tied to harassment, it would be an example of quid pro quo type of sexual harassment.

·      Hostile environment is more difficult to define. It can relate to any aspect of the work environment that is deemed by an individual to be sexually offensive. Examples include: jokes, pranks, comments, gestures, emails, etc.

A few helpful reminders from EEOC:

·      The harasser can be the victim’s supervisor, any agent of the restaurant, a coworker or nonworker.

·      The victim is not just the person being harassed, but anyone who could be affected by an offensive conduct.

·      The harasser’s conduct must be unwelcome.

Is the restaurant liable for a supervisor’s harassment? What are the consequences of ignoring instances of sexual harassment in the workplace?

An employer (restaurant) can be held liable for a supervisor’s sexual harassment action. Furthermore, an employee does not need to face any adverse employment actions as a result of the sexual harassment in order to sue the employer. Under traditional agency principles, an employer may be indirectly liable for hostile environment by a supervisor if the harassment occurs within the scope of the supervisor’s employment. The courts are particularly harsh if an employer knew about the harassment but did not take any action to stop it and prevent it in the future. Merely warning guilty employees is not sufficient.

How can a restaurant defend itself in the event of a sexual harassment lawsuit?

A restaurant can raise an affirmative defense if it is able to show that it:

• used reasonable care to prevent sexual harassment from occuring in the workplace

• promptly attempted to investigate and correct any sexual harassment behavior

To accomplish the above, NRA recommends the following:

·      Create a sexual harassment policy that defines sexual harassment, states that harassment will not be tolerated and guides employees on specific steps to follow in the event of a sexual harassment incident.

·      Require employees to read and sign a copy of the sexual harassment policy annually.

·      Train managers to prevent, recognize and correct undesirable and improper workplace behavior.

·      Post announcements (through memos, posters, emails, intranet communication) reminding employees about the policy.

·      Have a toll-free number to lodge complaints or establish a chain of command with contact information for individuals to contact in the event of a sexual harassment incident.

What should the restaurant do if a complaint alleging sexual harassment is filed?

·      Promptly and thoroughly investigate every complaint.

·      Talk to both the accused and the accuser independently and ask each of them to recount the incident including details of any witnesses. The investigator should keep an open mind and not assume guilt during the investigation process.

·      Keep the information gained confidential.

·      Confirm that the incident occurred.

·      Take appropriate disciplinary action.